ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 15 September 2020 DOCKET NUMBER: AR20170010664 APPLICANT REQUESTS: * termination of the Reserve Component Survivor Benefit Plan (RCSBP) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * May 2017 Leave and Earnings Statement (LES) * DD Form 2656 (Data for Payment of Retired Personnel) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: * he and his wife filled out the notary portion of his application for SBP * Defense Finance and Accounting Service (DFAS) is still taking the money for SBP from his check * he does not want to participate in SBP * he did not receive any counseling on how to fill out the form * the form was confusing to fill out * the on line system will not process his application without the "X" in section 26a so he placed the word "no" in the box before the "DO" after he printed the form * he also placed an "X" in section 26g where it says "I Elect not to Participate in SBP" * he and his wife had the application notarized * the instructions on the form state if you choose not to participate in SBP you must have your spouse sign and the document must be notarized 3. The applicant's service records contain the following documents for the Board's consideration: * a memorandum from the U.S. Army Human Resources Command (HRC), dated 28 June 2012, subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), that advised him he had 90 days to make an election for RCSBP or the election would default to Option C (enroll with death annuity paid immediately upon notification of death, regardless of age) * a DD Form 2656, dated 20 March 2016, which shows: * his retirement transfer date was 4 September 2015 * his date of birth was * his wife is named item 22a (Spouse) * in item 26a he placed an X beside the statement "I elect coverage for spouse only" and he placed a "No" beside "do" * in item 26g he placed an X behind the statement "I elect not to participate in SBP" beside "do" * in item 27a he placed an X beside the statement "I elect coverage based on full gross pay" * he, his wife, a witness, and a notary signed the form * Orders C-09-513405, published by HRC, dated 4 September 2015 assigning the applicant to the retired reserve 4. The applicant provides the following documents for the Board's consideration: * his May 2017 LES showing a deduction for SBP * a DD Form 2656, dated 20 March 2016, which shows: * his retirement transfer date was 4 September 2015 * his wife is named in item 22a (Spouse) * in item 26a he placed a "No" beside "do" and behind the statement "I elect coverage for spouse only" * in item 26 g he placed an X behind the statement "I elect not to participate in SBP" beside "do" * he, his wife, a witness, and a notary signed the form 5. Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 (and participate in SBP), to provide an annuity for their survivors should they die before reaching age 60. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay (costs for option C being the more expensive). 6. Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60. The law is applicable to cases where 20-year letters have been issued after 1 January 2001. In other words, failure to elect an option now results in the default election of option C. 7. Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation. Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP. The spouse’s concurrence is required. No premiums will be refunded to those who opt to disenroll. Reservists who elected an option under the RCSBP will continue to have the Reservist Portion cost deducted from their retired pay. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found partial relief is warranted. 2. The Board noted the applicant did not file an RCSBP election within 90 days of being issued his notification of eligibility for retired pay, a requirement that was clearly explained in the notification. As a result, his election defaulted to Option C as required under the statute governing the program, which remained his election when he began receiving retired pay at age 60. The Board determined the default election was not in error or unjust. 3. The Board further noted that the applicant attempted to make an election to opt out of the RCSBP, and his spouse concurred. He became eligible to withdraw from SBP beginning on the second anniversary of the date on which his retired pay started. The Board determined that, if the action has not already been completed, the record should be corrected to show the applicant submitted a request to withdraw from SBP upon becoming eligible to do so and to show the request was approved. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show that, if such action has not already been taken, the applicant submitted a request to withdraw from the Survivor Benefit Plan upon becoming eligible to do so and to show the request was approved. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess of that described above. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 (and participate in SBP), to provide an annuity for their survivors should they die before reaching age 60. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay (costs for option C being the more expensive). Once a member elects either Options B or C in any category of coverage, that election is irrevocable. Option B and C participants do not make a new SBP election at age 60. They cannot cancel SBP participation or change options they had in RCSBP – it automatically rolls into SBP coverage. If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60. 3. Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60. The law is applicable to cases where 20-year letters have been issued after 1 January 2001. In other words, failure to elect an option now results in the default election of option C. 4. Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation. Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP. The spouse’s concurrence is required. No premiums will be refunded to those who opt to disenroll. Reservists who elected an option under the RCSBP will continue to have the Reservist Portion cost deducted from their retired pay. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170010664 4 1